ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

TO BE ANONYMISED

Investigation Recommendation Reference:  IR - SC - 00001058

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  16/10/2023

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 21st January 2023.  The Worker was represented by Ms Dorothy Donovan BL instructed by McDonald Solicitors and County Council B was represented by In-house Counsel.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  This dispute was adjourned on a number of occasions for the purposes of enabling further submissions and was heard on 16th October 2023. A number of comprehensive written submissions along with supporting documentation was received from both Parties.  As Section 13(8) of the Act provides that such hearings shall be held in private, accordingly, I direct that any information that might identify the Parties within this recommendation should not be published.

Background:

The Worker is employed by County Council A.  He is next on the Public Appointments Service (PAS) Panel for a promotional appointment to County Council B shortly due to expire.  He contends that he has been bypassed owing to the positions he is eligible for being filled on an ‘acting-up’ basis and/or supressed.  County Council B contests the jurisdiction of the WRC to investigate this dispute and without prejudice, maintains that there are good operational reasons for treating the positions in question accordingly.

Summary of Worker’s Case:

The Worker is employed by County Council A in a senior role at a senior grade.  For years, he has unsuccessfully sought a promotion with various County Councils via PAS which is statutorily mandated to undertake employment competitions for public bodies.  Most recently, following a competition, he was next on the PAS Panel for a promotional appointment to County Council B which is due to expire.  There was an exchange of correspondence between the Parties, wherein the Worker had sought to be appointed and County Council B had refused, relying upon the Manager’s statutory entitlement to make staffing arrangements pursuant to Section 159 of the Local Government Act 2001.  The Worker contended that he had not been selected to date for positions he is eligible for owing to the practice of filling vacancies internally on an ‘acting-up’ basis for lengthy periods of time.  Two of the positions in question were filled on an ‘acting-up’ basis whilst a third was suppressed.  Concern was also expressed that following the Supreme Court Judgement in Power -v- HSE 2022 IESC 17, employees appointed internally on an ‘acting-up’ basis automatically had their positions made permanent by operation of law under the Protection of Employees (Fixed-term Work) Act 2003 thus bypassing the PAS process.  Whilst the Worker accepts that his placement on the PAS Panel does not give him a legal entitlement to any appointment, he contends that he is being unfairly denied an opportunity for promotion and time is running out as he nears retirement age.  The Worker seeks a recommendation that County Council B appoints him to one of the eligible positions.

Preliminary Issue as to the Jurisdiction of the WRC to investigate Dispute:

At the outset, Counsel for County Council B confirmed that it had not indicated an objection to an Adjudication Officer of the WRC investigating this dispute out of courtesy and was appearing to raise a preliminary objection.  It was contended that because the Employer named herein ‘County Council B’ was not the Worker’s employer, the WRC had no jurisdiction to investigate this dispute.  Extensive written and oral submissions on this point were received on behalf of both Parties.  On behalf of County Council B, it was submitted that the relevant statutory provisions did not allow the WRC to investigate disputes between parties who were not in a direct employment relationship.  In this respect, reliance was placed on Labour Court Recommendation LCR22743, involving a dispute between two former colleagues finding: “The question that the Court has to decide is whether the Claimant is a "worker" within the definition contained in Section 23 of the Industrial Relations Act 1990.  In response to questions from the Court, the Claimant acknowledged that the other party named on his complaint form was a former colleague and not his employer.  As a result the Court finds that the Claimant is not a “worker” within the meaning of the Industrial Relations Acts 1946-2015, as he did not work under a contract of employment with the other party named in his complaint for the period to which the claim relates.”  Accordingly, the Labour Court held that it did not have jurisdiction to hear the matter.  Conversely, Counsel for the Worker submitted that as the definition of a “worker” under Section 8 of the Industrial Relations Act 1990 includes persons not in a direct employment relationship it thus allowed for the investigation of disputes between such parties.

Summary of County Council B’s Case:

County Council B maintained that the two positions in question were properly filled on an ‘acting-up’ basis by employees appointed internally whilst a third had been suppressed for good operational reasons reflecting current service demands and delivery together with an assessment of longer-term needs.  Whilst further detail was provided in relation to a related complaint which was withdrawn, County Council B did not wish to engage further in relation to this dispute given its objection to the jurisdiction of the WRC.

Conclusions on Preliminary Issue:

It is necessary to set out the relevant statutory definitions for the purposes of determining whether the WRC has jurisdiction to investigate this dispute.  Firstly, Section 23(1) of the Industrial Relations Act 1990 defines a “worker” for the purposes of referral of a dispute to the WRC under Section 13(2) of the Industrial Relations Act 1969 as follows: “In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour…”  A further definition of a “worker” is provided by Section 8 but as it is limited to trade disputes under Part II of the 1990 Act, it has no application in the instant dispute.

For the purposes of a dispute under Section 13(2) of the Industrial Relations Act 1969, a “trade dispute” is defined by Section 3 of the Industrial Relations Act 1946 (with underlining added): “the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased,”  A further definition of a “trade dispute” is provided by Section 8 of the Industrial Relations Act 1990 but is limited to trade disputes under Part II of that Act.

Section 13(2) of the Industrial Relations Act 1969 provides for the referral of trade disputes to the WRC subject to there being no objection by either party (with underlining added): “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.” 

Professor Anthony Kerr sets out a comprehensive summary of the Irish caselaw on the phrase “employment or non-employment” within the context of a trade dispute in his commentary on the Industrial Relations Act 1990 in The Trade Union and Industrial Relations Acts, Sixth Edition, pgs. 214-215: “The phrase “employment or non-employment” has been extensively considered by the Irish courts.  It has been held to be wide enough to cover any dispute arising out of the employment or dismissal of any person.  It covers future termination as well as an immediate dismissal, and it does not matter whether the dismissal was lawful or fair: see Lavery J. in Quigley v Beirne (1955) I.R. 62, 76.  So in Goulding Chemicals Ltd v Bolger (1977) I.R. 211, the Supreme Court held that workers who had been made redundant were quite entitled, under the 1906 Act, to demand a sum greater than their statutory entitlement to redundancy pay and to take industrial action if the claim was refused: see, per Kenny J. at 238 and McWilliam J. in Cleary v Coffey reported at (1985) 4 J.I.S.L.L. 70, 71.  Nor can any distinction be drawn between the case of a dismissed employee and that of a person seeking initial employment: see per Hamilton J. in McHenry Brothers Ltd v Carey reported at (1984) 3 J.I.S.L.L. 82, 85.  Thus a dispute over the hiring policies of an employer or his refusal to hire a particular person will be a trade dispute.  McWilliam J. has held, however, in J. Bradbury Ltd v Duffy (reported at (1984) 3 J.I.S.L.L. 86) that there had to be some restriction on “the universality of the application of the term ‘non-employment’.”  He took the “extreme case” of a person starting a new business for which 10 employees were required and receiving 50 applications.  McWilliam J. could not accept that the 40 unsuccessful applicants were entitled to take any sort of industrial action simply because they had not been given jobs.  Similar views were expressed by Costello J. in his ex tempore judgment delivered on May 31, 1991, in Michael McNamara & Co. Ltd v Lacken (1990 No. 17675P) when he said that there was a fair issue as to whether refusal of employment to the defendants was a trade dispute.”

Applying the facts herein to the aforesaid statutory provisions and caselaw, as a person over the age of 15 years who works under a contract with an employer, the Worker meets the definition of a “worker”.  The definition of a trade dispute expressly includes disputes “between employers and workers” connected to “non-employment” inferring that the parties concerned may not necessarily be in a direct employment relationship.  Whilst the jurisdiction of the WRC requires a trade dispute to exist or to be apprehended and to involve workers within the meaning of Part VI of the Principal Act as defined above, it does not stipulate that the parties to the dispute should be in a direct employment relationship and they are simply required to be party to the dispute.  As confirmed by the caselaw cited above, and within limitations, the term “non-employment” may include a dispute in relation to the hiring policies of a prospective employer or the refusal by a prospective employer to hire a particular person.  Given that the Worker’s prospect of attaining a promotional position with County Council B is directly affected by its filling of two positions internally on an ‘acting-up’ basis and suppressing a third position which he would be eligible to fill, I am satisfied that a “trade dispute” exists between the Parties herein.  I am further satisfied that given the unique factual situation pertaining in the instant case, that it falls within the limitations envisaged by the Judges in the authorities cited above.  Accordingly, I find that the WRC has jurisdiction to investigate this dispute.  In so finding, I distinguish this dispute on the facts from those in Labour Court Recommendation LCR22743.

Conclusions on Substantive Dispute:

Having found that I have jurisdiction to investigate this dispute, I have carefully considered the submissions made on behalf of both Parties.  Based upon the information provided, there is nothing to suggest that the filling of the two positions internally on an ‘acting-up’ basis and suppression of a third position by County Council B was anything other than for operational reasons and in accordance with its statutory remit.  The Worker also accepts that selection to a Panel for a particular role via PAS does not afford him a legal entitlement to appointment.  I therefore find no basis for recommending the course of action sought. 

The fact that PAS is statutorily mandated to undertake the selection process for positions within the public sector ensures independence, transparency and accountability.  However, such positions can only be filled when they become available and are sought to be filled from the PAS Panel by the public body in question.  Given the Worker’s experience to date, his perception of unfairness is understandable in the absence of a formal policy on the use of internal ‘acting-up’ to temporarily fill positions within County/City Councils.  Thus, County Council B and other County/City Councils might give due consideration to drawing up same.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  Whilst I have sympathy with the Worker’s position, I am unable to recommend the concession sought.  Going forward and in the interest of ensuring transparency, accountability and fairness, County/City Councils might give consideration to drawing up a policy on ‘acting-up’ with their stakeholders.

Dated:  14th December 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Jurisdiction of WRC to investigate dispute under Section 13(2) of Industrial Relations Act 1969 – meaning of “non-employment” within a “trade dispute” - Section 3 of the Industrial Relations Act 1946